Welcome to Texas justice: You might beat the rap, but you won't beat the ride.

Friday, December 14, 2007

Snitching and the Drug War at the TPM Cafe Book Club

Over at the TPM Cafe Book Club this week they're debating the book "Snitch," and unsurprisingly the topic quickly turned to the use of snitches in the drug war. I'm going to try to review "Snitch" next week, but the discussion so far over at TPM itself is remarkable. Ethan Brown's book focuses primarily on snitching in the federal system, which has its own specific rules and vernacular. Writes Brown in his introductory TPM post:

Street hustlers and criminal defense attorneys call this process “The 5K Game.” Indeed, one criminal defense attorney dubbed a cooperator in a recent drug conspiracy case that a “graduate of 5K University.” Why? Because the cooperator cooperated in a federal drug case in Pennsylvania the early 1990s, received a huge sentencing reduction as a result and then hit the streets and committed murders for hire in New York during the late 1990s and beyond. When he became ensnared in a murder and drug conspiracy case in 2007, he entered into a cooperation deal yet again. This cooperator’s tale elicits yet another fatal flaw of the cooperator institution: cooperators are often much, much more dangerous than the defendants they have cooperated against. Unsurprisingly, residents in inner city neighborhoods where such dangerous cooperators roam free are not happy with the effects that the “5K Game” is having on their communities. Indeed, I believe this anger with the unregulated cooperator institution is at the very root of the much publicized, yet little understood “Stop Snitching” phenomenon. While antipathy towards informants and cooperators has existed for decades—former FBI director William Webster famously remarked that “there is a tradition against snitching in this country”—the evils of the “5K Game” and mandatory minimums for drug related offenses have caused an explosion in anti-law enforcement sentiment in recent years, particularly among minority populations who are most affected by such policies. As criminologist David Kennedy told The Atlantic Monthly in April of 2007, “this [mistrust of law enforcement] is the reward we have reaped for 20 years of profligate drug enforcement in these communities.”

Based on these comments and his reading of the book, drug policy prof and blogger Mark Kleiman views criticism of snitching, perhaps rightly, as a frontal attack on the drug war. As a drug war supporter, at the end of the day (he actually argues it was a public policy mistake to end alcohol prohibition), Kleiman thus encourages us to "Keep on Snitchin'." John McWhorter replied that the book made him think the entire war on drugs needed to be scrapped, causing Brown and Kleiman to digress over whether drug prohibition should be scrapped or retained.

Though Doc Berman and Alexandra Natapoff brought the discussion back down to earth by insisting that snitching plays out in many different contexts, it's entirely understandable that the debate over coercing criminals to testify in exchange for leniency would center at least in part on the drug war.

The best statistics I've ever seen on the aggregate use of snitching in drug law enforcement came from Texas drug task forces like the one in Tulia funded by the federal Byrne grant program. After management of Texas' task forces were taken over by the Texas Department of Public Safety, those units' aggregate reporting constituted the closest thing to hard numbers I've ever seen regarding (state) drug cases involving informant testimony. E.g., in this public policy report (pdf) published by ACLU of Texas in December 2002, I was able to calculate that "collectively requested $1,941,286 in funds for CIs in their 2002 grant applications." That's a lot of scratch paid to informants in a single year!

Not only do informants have incentives to lie, but task forces and other drug enforcers frequently have their own incentives to maximize their cases made thanks to asset forfeiture and don't always have many good reasons to closely examine snitch testimony favorable to their case. (I've been told that this is more frequently a problem with young prosecutors - long-timers tend to have been burned pretty often and may be less likely to rely solely on a snitch, the logic goes.)

Thankfully, Texas' Byrne task force system was abolished by Gov. Perry after a serious of remarkable and unfortunate scandals, and those funds have largely been shifted to give fat grants to border sheriffs to patrol the Rio Grande. However, Byrne task forces in other states still provide perhaps the best snapshot of informant use in drug cases. A quick Google search turned up this recent report on Byrne grant funded drug task forces in Massachussetts, which largely jibes with the numbers we saw in Texas (see p. 7):

During FFY 2005 and FFY 2006, the task forces reported 5,373 drug transactions. For the task forces that reported information on the types of drug transactions, purchases made by confidential informants were the most frequently reported type of drug transaction (45%), followed by purchases made by undercover officers (32%).

These 5,373 drug transactions a two-year period resulted in more than 3,000 arrests and more then 10,000 drug charges, according to the report - 95% of them state-level offenses. Applying the percentage of informant-related transactions to arrests, around 1,500 defendants were arrested in Massachussetts by drug task force officers during those two years based on informant testimony.

Most of these informants were themselves in a position where they could have been arrested for their own crimes, but were granted leniency if they would go scout out other people for drug task force officers to arrest. A smaller number (who often begin "working off" cases then continue snitching for pay), become professional paid snitches like Alex White in Atlanta, who considered working as a police informant his "job."

If lying snitches were the only problem, there might be little overall reason for concern. Substantive corroboration requirements and vigorous cross-examination might prevent most such injustices (though right now that doesn't always happen). But forcing witness "cooperation" as it's practiced today by threatening long prison sentences has larger corrosive effects on the justice system to which Doc Berman's appropriately returned the discussion - the degradation of civil rights and liberties for everyone, not just those caught up in drug cases:

Through many provisions of the Bill of Rights -- particularly the right to a jury trial and the rights of confrontation and counsel -- the Framers sought to limit the ability of govertments to convict and punish persons based on suspect accusations. But, as Ethan shows with many anecdotes, persons facing certain and severe sentencing consequences quickly realize that flinging allegations may be their only sentencing life preserver, and some of these allegations are sure to stick.

Relatedly, and integral to this story as well, is the weakening of the privilege against self-incrimination. By threatening even more severe and certain punishment after a trial conviction, the feds now can tell suspects that only through self-incrimination and cooperation is there any real hope of a mitigated sentencing term. In this context there is a particularly disturbing irony: those who are most guilty and would least benefit from traditional trial protections are necessarily going to admit guilt and point fingers in the hope of reducing their sentencing exposure; in turn, those who believe in their innocence end up subject to the full brunt of the certain and severe sentencing realities if convicted after a traditional trial.

Hear, hear. Go get 'em, Doc! And those aren't the only serious problems. Regular readers know I've long thought this dark underbelly of the justice system deserves more discussion. Those interested in more on the subject should definitely mosey on over to TPM Cafe's Book Club, and I'm looking forward to reading and reviewing "Snitch" myself in the near future.

7 comments:

"I was able to calculate that '[The Texas Byrne funded task forces] collectively requested $1,941,286 in funds for CIs in their 2002 grant applications.'"

From reading the ACLU report you linked I see where you might have just lifted that exact quote, but I did not find any figures or tables of figures which you might have used to "calculate" your figure. So, which is it? Did you actually calculate the figure or just plagiarize the ACLU?

If it is as the latter, then it seems to follow a pattern I have noted in your writing in which you take statements and interpretations from other sources and claim them as fact. The most recent, and quite egregious, example being your November 18th post about a Criminal Court of Appeals ruling regarding a case in which a Fredericksburg Police Officer returned some seized Marijuana to a defendant. In that post your "source" was the ACLU who was quoting the San Antonio newspaper, but you did not read, or accurately understand, the actual opinion to see that your interpretation was far off the mark of what the ruling said.

But returning to the amount that you (or the ACLU) calculated as requested funding by the (then) 45 Texas Byrne task forces as "funds for CI's" in 2002. Such funding is nearly universally referred to as PE/PI (pronounced Pee-Pie) and refers to the terms Purchase of Evidence and Purchase of Information.

Anybody requesting or reporting onm the expenditure of federal drug money is going to use those terms.

PE is the money used to actually pay for some item of potential evidentiary value, such as drugs. While PI is paid to someone for information that they provide, like where drugs are being sold. So, in an individual transaction in which an informant is used to buy drugs from a location he claims he knows about, there might be $20 in PE funds given to CI for him to pay for the drugs, and an additional $20 in PI funds for the inside knowledge he used to know where and how to buy the dope.

But PE/PI also covers a myriad of other activities. Officers might pay a garbage truck driver $10 to recover a bag of trash abandoned in front of a suspected drug house (so we can search for evidence), or PE funds can also be used to pay the various telephone companies the fees they demand (and are allowed to collect) to produce reports on billing, call detail records and subscriber reports that they have been subpoenaed to produce to law enforcement.

I've seen PI money spent to buy a ticket to a sporting event so a drug dealer's car could be accessed while he attended the game and a court authorized tracking device could be installed on his car. The tracking device was the only way to safely follow this particular crook and the information about where he went was vital to the investigation. The only proper way to claim that expense was PI - the same PI that pays informants.

To claim that nearly $2 million was paid to informants is suspect in light of there being no breakdown information provided to how much of that was PE or PI funding, and how much of the PI funding actually went to informants and how much went to some other person or entity that was not an informant but did provide information.

I authored that report for ACLU in 2002. Do you suppose I "plagiarized" myself? I calculated the information from task force reporting garnered under open records requests. The sources are in the footnotes to the report.

Also, these were local entities, not federal - the funds weren't broken out in the reporting the way you describe, or using that terminology, but instead simply lumped into a category called a confidential informant fund, at least in those grant reports.

As for the post on the CCA ruling, we must agree to disagree. I think you're wrong, and ACLU's blog post (and the court minority) got it right: the CCA said returning dope, money, whatever to a suspect is not evidence tampering if the amount the cops keep is within the same punishment category. That's what the ruling said. Sorry if you want to read more into it to make them look better, but that's the net result of the majority opinion however you slice it. best,

I'm interested in knowing if there are any published economic analyses of the economic benefit to a snitch, or CI, or government witness, who is either spared incarceration or gets a shorter term, or probation, for his or her cooperation. Specifically, what is the economic value to a snitch, apart from any fees she may receive, of snitching? Does staying out of prison, and continuing to be employed, having close ties to family, etc., have ascertainable economic value?

If so, then the amounts actually given to snitches may be grossly less than what they actually receive. Which is to say, in some cases, that the bribes paid to snitches by the government could be much greater than those reported in terms of dollars paid.

I hope when you get around to reviewing the book, you will address this.

In addition, you could satisfy my curiosity by addressing any cases or other incidents, in which criminal Defense attorneys, or the family and friends of accused persons, have made payments to defense witnesses in the same way the government makes payments to snitches and witnesses.

On the economic value to not being imprisoned, as an offhand valuation I'd look to the compensation for those wrongfully imprisoned, which currently is at $50,000 per year incarcerated. The reason for the compensation is for both lost wages and liberty, so arguably that's a statutory minimum of what that year is worth. (There's also a body of tort law measuring compensation for lost time in wrongful death cases, etc., that my father could more ably speak to than I can).

But taking that $50K, let's say a drug possessor is busted with less than a gram of crack, which is a state jail felony, a two-year minimum stint with no parole. (With no priors they get probation on the first offense, but otherwise that's the penalty.)

So someone facing a state jail felony who is not prosecuted in exchange for information has received at a minimum an additional $100,000 value, by this logic.

As to the question of defense counsel paying witnesses, as you well know it's considered de facto tampering - you've placed your finger on a key hypocrisy of the system. I think of the Ruben Cantu case where Bexar DA Susan Reed pointed to paying expenses of a former state witness by a defense investigator as completely, irreparably destroying his credibility, even though the state thought he was plenty credible when he'd testified on THEIR behalf.

As I pull my foot out of my mouth I do offer my sincere apology. I zipped right past the title page and did not notice your name.

Regarding the question about how the CI funds were budgeted and spent, I did read the footnotes and have gone back again and still don't see a reference to where the figures came from. I know there have been some changes in how the Byrne task forces are managed here in Texas, I thought it was always a federal program that was governed by the same rules regarding budgeting and reporting of expenses outlined by OJP standards.

How it was in 2002 I don't know, but from looking at the current version (2006) of the OJP Financial Guide (which does currently govern Byrne funding & reporting) the terms PE/PI are used and in fact required particularly in the reporting of any expenses used to pay informants.

I did note that the current rules are that only informants are paid from PI, and all other payments for information comes from PS (purchase of services) - I don't think that was the case in 2002. But I could be mistaken.

In any case, it is important to note that however it is broken down now, all PI/PE/PS have always been budgeted, rewarded, and reported under the broad category of "Confidential Funds". Without seeing exactly what material you used to determine that $1.9 Million figure, I think it likely included a lot of other confidential expenses.

In short, I cannot see almost $2 million being spent by 700 odd law enforcement officers in payments to informants. If you add all the stuff that comes in under PE and PS, which are included under the authorized uses of "Confidential Funds", then that makes much more sense.

As for our disagreement about the Fredericksburg case, I was specifically referring to this statement you wrote:

"...now they've ruled that it's okay for police officers to distribute drugs to informants in order to convince them to become snitches."

I never saw anything like that in the CCA opinion. In fact, it seemed that the court was saying that the officer had certainly broken the law, just not the one he was charged with violating.

First, on the CCA opinion, you're correct that statement was overbroad, and if you read the comments in that post we've clarified all that in some detail, laboriously parsing out precisely what the CCA did and didn't say. Please give credit for everything I've written, not just the one snippet you dislike.

To be honest, though, I believe if the officer had been charged with drug distribution, as the majority cavalierly suggested he might be while dismissing the evidence tampering case, that Judge Keller would have found a way to dismiss those charges, too, based on her record. She routinely decides the outcome she wants in a verdict then writes twisted opinions to support them. IMO the Texas CCA is perhaps the worst example of overt, routine judicial activism by a high court in the country, certainly that I know of - they make all nine SCOTUS members look like originalists by comparison.

As for the task force stats, it was five years ago so I had to double check, and had forgotten how I'd sourced that stuff. On the title page is written:

"All quotes and statistics from Task Force applications come from documents obtained from an open records request to the Criminal Justice Division of the Governor’s office."

Basically I dislike documents larded with unnecessary footnotes - they make it look like the author is straining to prove credibility - and footnoting every single quote and internally calculated stat to the open records documents in that report would have roughly tripled the number of citations. There's no reason to do it but vanity, since nobody can double check the work unless they have access to the backup materials for the report (which is all in a binder somewhere at ACLUTX, incidentally, along with backup for each footnote). So I made the decision to source the primary sources all in a lump as stated above. FWIW, the DPS never disputed the figures, and in fact changed their own rules substantially based on the recommendations in that report in the DPS Narcotics division.

Finally, as to reporting requirements, looking more closely those data were for money requested and granted for each task force's confidential informant fund, which you're probably correct does include the various categories you describe. But before 2002 when the Guv put them under DPS, literally every TX task force reported to the feds on its own, often using disparate measures and standards - the truth is, if they didn't comply with OJP, particularly during the Clinton administration, nobody really cared.

The 2002 grant requests were the first one where Texas task forces were all under DPS rules and had to attempt, for the first time, to comply with uniform reporting standards. They'd just been submitted when I wrote the report.

Southern, daily and good for you

Grits for Breakfast looks at the Texas criminal justice system, with a little politics and whatever
else suits the author's fancy thrown in. All opinions are my own. The facts belong to everybody. Who is this guy?

"I always tell people interested in these issues that your blog is the most important news source, and have had high-ranking corrections officials tell me they read it regularly."

- Scott Medlock, Texas Civil Rights Project

"a helluva blog"

- Solomon Moore, NY Times criminal justice correspondent

"Congrats on building one of the most read and important blogs on a specific policy area that I've ever seen"

- Donald Lee, Texas Conference of Urban Counties

GFB "is a fact-packed, trustworthy reporter of the weirdness that makes up corrections and criminal law in the Lone Star State" and has "shown more naked emperors than Hans Christian Andersen ever did."

-Attorney Bob Mabry, Woodlands

"Grits really shows the potential of a single-state focused criminal law blog"

- Corey Yung, Sex Crimes Blog

"I regard Grits for Breakfast as one of the most welcome and helpful vehicles we elected officials have for understanding the problems and their solutions."

Tommy Adkisson,Bexar County Commissioner

"dude really has a pragmatic approach to crime fighting, almost like he’s some kind of statistics superhero"